TaxTMI 
TaxTMI 
2014 (2) TMI 1385
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....e service of the petitioner on 01.12.1992 as branch operation assistant. Eventually by 10.08.1998, the employee, having been promoted as the area operations executive, had been looking after five branches in the city of Hyderabad. 2. Holding that the employee committed serious misconduct taking advantage of his official position, on 28.02.2001 the company issued a preliminary show cause notice to the employee. Since the explanation submitted by the employee was not satisfactory, the company issued on 13.03.2001 another charge sheet-cum-suspension order detailing all the charges. Though the employee rendered an unconditional apology on 14.03.2001, as a matter of abundant caution, the company initiated disciplinary action, which resulted in the dismissal of the employee through an order, dated 23.10.2001, passed by the disciplinary authority of the company. 3. Aggrieved by the order of dismissal, dated 23.10.2001, the employee approached the appropriate authority under section 48(1) of the Act, i.e., the Assistant Commissioner of Labour Court-III, Hyderabad, the first respondent in the writ petition by filing S.E. No. 45 of 2001. The said first appellate authority allowed the a....
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....r the petitioner initially may be appreciated on the aspect of the maintainability of the writ petition. If this court, on such appreciation, comes to a conclusion that the writ is maintainable, then the submissions on the merits of the matter shall also be considered. 8. The learned counsel for the petitioner has submitted that the employee was discharging managerial functions having supervisory control over three branches of the petitioner company. The employee, in fact, is a "manager" but not an "employee" in terms of Section 2(8) of the Act. It is further contended that the first appellate authority, being a quasi judicial authority, ought to have functioned strictly within the precinct of the statute and ought not to have arrogated to himself the power and jurisdiction which he has not been vested with. It is a case of inherent lack of jurisdiction and, as such this court is the appropriate forum for adjudicating the issue of lack of jurisdiction. It is further contended that, despite the observations of the second appellate authority, while remanding the matter, as to the nature of functions discharged by the employee, the first appellate authority has once again mechanica....
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....renuously opposed the claims and contentions of the petitioner company. The learned counsel has substantially made submissions concerning the alternative remedy said to have been available to the petitioner and the non-maintainability of the writ petition on that count. 13. The learned counsel for the respondents has contended that before the first appellate authority no evidence was adduced and no separate documents were marked by the petitioner company. Only on remand did the petitioner examine a witness, said to be one of its managers. 14. The learned counsel has submitted that when initially the first appellate authority allowed the application of the employee and directed the company to reinstate the employee, on its own accord the petitioner company went before the second appellate authority and laid challenge against the order of the first appellate authority. Even then, the company took the plea of lack of jurisdiction in the first appellate authority to entertain the application at the behest of the employee. When the matter was remanded, the company did participate in the proceedings and lead evidence as well. When once again an order was rendered by the first appel....
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....tion, disablement, etc., and payment of subsistence allowance for the period of suspension. In fact, Section 48 provides the remedial mechanism for the aggrieved persons. It is profitable to extract the said section to see whether the First Appellate Authority inherently lacks jurisdiction in this regard. Section 48 reads: 48. Appointment of authority to hear and decide appeals arising out of termination of services : (1)(a) The Chief Inspector may, by notification, appoint for any area as may be specified therein, any authority to hear and decide appeals arising out of the termination of service of employees under Sec. 47: Provided that the Chief Inspector may on administrative grounds transfer any appeal arising in the territorial jurisdiction of any authority to the file of another authority for disposal, and such authority to whom the appeal is transferred by the Chief Inspector shall dispose of the appeal so transferred. (b) Any employee whose services have been terminated may, appeal to the authority concerned within such time and in such manner as may be prescribed. (2) The appellate authority may, after inquiry in the prescribed manner, dismiss the appeal or dir....
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....e payable under this section for such period or part, as the case may be. (5) Any amount directed to be paid under this section may be recovered: (a) if the authority appointed under Sub-section (1) is a Magistrate, by the authority, as if it were a fine imposed by him as Magistrate; and (b) If the authority is not a Magistrate, by any Magistrate to whom the authority makes application in this behalf as if it were a fine imposed by such Magistrate. 20. Though the matter has been pending since 2010, a perusal of the record indicates that no rule nisi has been given. Thus, the matter is taken up for consideration before admission. Most of the pleadings and substantive part of the submissions made by the learned counsel for the petitioner concern themselves about the manner of adjudication undertaken by the first appellate authority and also about non-consideration of certain vital documents. There is an allegation even with regard to the alleged missing documents and also the bias of the adjudicating authority. 21. In fact, the petitioner has shown an accusing finger is shown towards the first appellate authority contending that he has deliberately disregarded the dire....
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....gly on 09.02.2009 the counsel for the respondent filed a memo praying this authority to furnish a copy of the statement of his witness Sri Srinvas Chawali, H.R. Manager of the respondent company and few original documents filed in support of the evidence by the said witness." In the next paragraph, the first appellate authority has observed: "In reply to this memo, the learned counsel for the petitioners submitted that the respondent was misleading this authority and also casting aspersions against the authority since no such witness was examined by the respondent during the trial before this authority (on 06.06.2008 the respondent right to file counter was forfeited for his continuous absence). In fact, the instances of disputed facts are legion. 26. As this court has proposed to examine the rival contentions about the maintainability of the writ petition, or, in other words, about the availability of an efficacious alternative remedy, it does not propose to examine the statutory position in relation to AP Shops and Establishments Act, 1988, unless the court comes to a conclusion that it can as well entertain the matter on merits. 27. In Surya Dev Rai v. Ram Chander Rai (sup....
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....ognizes the existence of a right to move the Supreme Court under Article 32 where the action is taken under an ultra vires statute, or where, although the statute is intra vires, the action is without jurisdiction or the principles of natural justice are violated. Errors of law or fact committed in the exercise of jurisdiction founded on a valid law do not entitle a person to have them corrected by way of petitions under Article 32. It is also pointed out that the proper way to correct them is to proceed under the provisions for appeal, etc. or by way of proceedings under Article 226 before the High Court. Before proceeding further, it is to be stated that observation of the Supreme Court in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras (supra) cannot be taken as an absolute proposition that wherever a party cannot take recourse to Art. 32, to correct errors of law or fact committed in the exercise of jurisdiction founded on a valid law, invariably the said party can approach the High Court notwithstanding the alternative efficacious statutory remedies. The observation concerning Art. 226 is sub silentio and concerns itself with Art. 32 of the Constitution. 30.....
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.... 2(8). Even otherwise, in my considered view, there are disputed questions of fact to be adjudicated as has already been indicated. 32. In Rajasthan v. Karamchand Thappar & Bros. (supra), the petitioner challenged the authority of the state government to enact a law whereby tax on the sale of goods outside the state could be levied. The petitioner has further averred in the writ petition that he has a fundamental right of trade and any such imposition infringes that right of his. In that context, the Supreme Court has held that there is nothing wrong in the High Court exercising its powers under article 226 of the Constitution. 33. In Calcutta Discount Co. Ltd. v. I.T.O. (supra) a Constitutional Bench of the Hon'ble Supreme Court has held that the existence of an alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. It is further observed, in the facts of the case, that there is nothing in its conduct which would justify the refusal of proper relief under Article 226. When the Constitution confers on the High Courts the power to giv....
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....te to any extent to sales otherwise than under the contract, then the enquiry with respect to them must proceed before the authorities under the Act and the application under Article 226 must fail. (emphasis supplied) 36. In the above judgment it is very clearly held that when proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under Article 226. A fortiori, if the issue is not that vires, either of the Tribunal or of the provision of law, proceedings under Art. 226 must fail. 37. It is a truism to state that a decision is an authority to what it actually decides, more particularly, in the factual setting of the said case. The constitutional courts have always leaned towards the common man when he has come to the court with a grievance that he has been a victim of executive excesses or administrative vagaries. Under those circumstances the benefit of public law remedy cannot be thwarted on technicalities. Under a writ of certiorari the jurisdiction of the High Court is extremely restricted, for it looks at the decision making process rather than the decision itself. It is averse t....
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....utory remedies have not been exhausted. In fact, placing reliance on the commentary in Halsbury's Laws of England, 3rd Edn., as well as certain English decisions, apart from its own, the Hon'ble Supreme Court has further held: There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course... In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice. (emphasis supplied) 40. On a close scrutiny of the case, I regret my inability to see either of those exceptions as set out above applying to the facts of the present case. In a recent judgment, Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd.....